Traversing the Law: Alabama's rural surveyor controversy.
What is a Rural Surveyor?In essence, the “rural surveyor” legislation dumbs down the license requirement in Alabama to allow anyone to obtain a license to survey in rural areas of the state provided that three people (not necessarily land surveyors) write a letter to the Alabama State Board of Licensure for Professional Engineers & Land Surveyors vouching for the abilities of the candidate. As one commentator put it, this allows anyone with “three buddies” to become a surveyor. Ann Galloway, the executive director of the Alabama Society of Professional Land Surveyors (ASPLS), estimated that 90 percent of the state would fall under this “rural” definition. Taking this at face value, the vast majority of the state and the state’s 4.5 million residents would be subject to the effects of the rural surveyor legislation.
Ostensibly, we need rural surveyors for two articulated reasons: because farmers and other landowners can’t find a surveyor to survey their land, and even if they find a surveyor, the rates are too high. This legislation was apparently initiated after one constituent contacted one legislator. Currently, the Alabama Farmers Federation supports the bills under consideration in the House and Senate:
We support the bills because they would provide additional surveyors for rural areas while ensuring that our surveys remain accurate. We will continue to work with the sponsors to make sure the intent of these bills is clearly defined.2
The Unarticulated Reasons for the Rural SurveyorI think there are many unarticulated reasons why this legislation is making its way through the Alabama Legislature. In this column, I’ll share my speculations. As I have stated on many occasions, we don’t operate in a vacuum. What we do and how we go about doing it doesn’t go unnoticed by the general public, in particular landowners, and it doesn’t go unnoticed by other professionals, especially judges and lawyers. We like to think that we are the “unnoticed profession” and that we are misunderstood and underappreciated by the public and other professionals. But what’s really happening is that the public has formed a perception about land surveyors that lumps us all together and paints us with the same brush.
One perception is that no two surveyors can come to the same conclusion on a boundary (or a corner), and this equates to “we don’t know what we are doing.” We are generally seen as undereducated compared to other professions. Some people have had bad experiences as a result of their exposure to land surveyors and to land surveying. I see this in my own practice when I run into people who are downright hostile simply because I am a land surveyor. With this perception (not to mention pincushions), how big of a leap is it to think that surveying is something anybody could do (or at the least not do any worse)? To prove this point, one need simply ask the question: Why aren’t they asking for rural doctors, rural attorneys and the like?
Another public perception problem we have is that many see us as problem finders and not problem solvers. The modern-day surveyor is more likely to start a boundary dispute than to resolve one.
This surveyor’s mark was likely the spark that ignited this dispute. When the marker was placed near the Cothams’ fence, the Cothams challenged the finding saying they had always owned at least to the ditch line and perhaps past the ditch line to the north.3
We are stuck in a mindset from the 1950s, ‘60s and ‘70s. I’ve addressed this issue on many occasions in this column. We wrongly see ourselves as the “Sergeant Fridays” of the professions, asking for “just the facts, ma’am, just the facts.” We simply report on the “facts” and let others handle the problems that result. But acting as though the law is for judges and lawyers--and not for surveyors--has created a false sense of purpose and a false sense of security within our profession. Many surveyors feel that somehow we are either above (or immune) to the law. Nothing could be further from the truth. The surveyor is open to liability from virtually anyone who comes into contact with his or her work.
I was recently asked if surveyors need to understand property law in order to perform boundary surveys. Let me answer that by asking a couple of questions of my own. Does your pastor need to understand the Bible when you come to him for spiritual advice? Does your doctor need to understand medicine when she makes a diagnosis and prescribes medication? Does your attorney need to understand civil procedure when you go to court? Why, then, would your land surveyor not need to understand property law when surveying your property boundaries?
Numerous surveyors have been following the teachings of Brown and Clark, both of whom advocate that we are simply to report on the “facts.” With all due respect to these two fine gentlemen and the work they did in the past--that was in the past. Yet both Brown and Clark continue to advocate in the latest editions of their books that the surveyor will only be able to testify as to “facts” when he or she goes to court in a boundary dispute. In other words, when the surveyor goes to court in the boundary dispute case, he or she will not be allowed to testify as to the ultimate issue in the case. The ultimate issue in any boundary dispute case is what and where the true property boundary is between the litigating parties. A footnote in the seventh (and latest) edition of Clark, directly out of the 2007 supplement, reads:
After nearly 40 years of testifying in both state and federal courts as an expert witness, this is perhaps one of the most frustrating elements of my testifying as an expert. I could not say: “This is the section line.” All the courts would permit me to say “Based on my opinion, the evidence leads me to believe the section line is here or there.”4
This was true in the ‘50s, ‘60s and ‘70s before the law changed--now it is in direct contrast to what the law actually says. The expert will not only be allowed to testify, even to the ultimate issue in the case,5 but will more than likely be asked the ultimate issue in the case. Court case after court case continues to back this proposition. Clark singles out North Carolina law as the voice of the majority opinion on the issue of surveyors not being allowed to give opinion testimony on the ultimate issue. Here’s what North Carolina really has to say on the subject:
Rule 704 provides that opinion testimony “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” This rule abrogates the doctrine that opinion testimony should be excluded for the reason that it goes to the ultimate issue which should be decided by the trier of fact.6
This critical turn of events means that the modern-day surveyor testifying in court must not only be well versed in the facts but as to the ultimate issue in the case, as well. That is impossible to do in the role of Sergeant Friday--it’s impossible with an ancient mind-set.7
Why Does Surveying Cost So Much?I do not even need to address the problem of not enough surveyors. Nobody can make a reasonable argument that there are too many of us or even that our numbers are adequate. Many years ago, I heard a surveyor state that he wished he were the only surveyor in the state of Florida so he could charge whatever he wanted to (apparently meaning that he could charge any amount because he would be in such high demand). The obvious problem with this statement is that if he were the only surveyor in Florida, the state would find a way to operate without him. Given the proposed rural surveyor bills in Alabama, it’s easy to see how the state would be able to accomplish that.
It’s not the lack of surveyors that has necessarily driven up the cost of boundary surveys, although that can’t be eliminated as a contributing factor. Liability certainly plays a role, as well. What has driven up the cost of boundary survey work is our confusion over our duties and responsibilities as land surveyors. I base this opinion on a 32-year career as a land surveyor, having been on both sides of the law (so to speak), meeting land surveyors--literally--from coast to coast and hearing their confusion firsthand.
I began my present journey dealing with pincushions. Many surveyors don’t give them a second thought. Surveyors even tell me: “Pincushions, schmincushions, Jeff, who cares?” The reason I care is that pincushions are a physical manifestation of our collective confusion. Instead of busying ourselves with gathering and evaluating evidence of the establishment of boundaries, we are running out sections and re-subdividing land that has already been subdivided and throwing whole neighborhoods into turmoil. We keep moving the center quarter around until someone finally “gets it right.” We break out proportional measure at the drop of a hat, and, worse, we set those proportioned corners on the ground to the bewilderment of landowners and to the joy of trial lawyers.
Why does surveying cost so much? Because we spend too much time on the “things” of surveying and not enough time on the people, the situation and the ideas involved.8 One other reason is that we just don’t know what the next surveyor coming behind us is going to do. From the words of Walt Kelly’s classic comic strip, “Pogo”: “We have met the enemy and he is us.”